George Michael, Faith and Final Warnings
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Have faith – final warnings are useful.

They are easily given, difficult to appeal and can be relied on.  A tribunal can’t generally look behind a final warning and if an employee with a final warning steps out of line again, even in a relatively minor way, they can legitimately be dismissed for misconduct.

But what happens if the final warning was given in bad faith?  Surely, the process is unfair?

The answer is:  yes, it is.

However it took two appeals and for the matter to come before the Court of Appeal in Way v Spectrum Property Care Ltd  for this principle to be applied.

The facts are not particularly interesting.  All we need to know is that a final written warning had been given by a lone manager looking to hide his own misdemeanour, where the final warning was, on its face, valid and Mr Way had not appealed it.  This is what happened afterwards:

–     When Mr Way was later dismissed for another case of misconduct, which on its own would not have justified his dismissal, the employer refused to accept that the earlier final warning decision was unfair.

–     The Tribunal itself also chose not to investigate the issue, because Mr Way had not appealed the decision at the time and had accepted, in his second disciplinary hearing when he was dismissed, that the employer had genuinely believed that there had been no bad faith in relation to the earlier final warning.

–     The EAT too agreed that the employer could rely on the final warning.  They said that even if the Tribunal had considered evidence which had demonstrated that the final warning was given in bad faith, the decision would have been the same because, given the particular circumstances of the case, the employer could rely on a final written warning.

There are good reasons why both tribunals did not want to look behind the final warning:  deciding whether an employer’s decision to dismiss is fair is already time consuming, but having to consider the fairness of earlier warnings adds another level of complexity and time, which the tribunal system would prefer to avoid.

But the Court of Appeal disagreed with taking shortcuts.  It said that if the final warning was needed in order to justify the dismissal, then the tribunals needed to be satisfied that the final warning was given in good faith.  If there is any doubt, then it is for the Tribunal to investigate this and make a determination.  It made no difference whether the employer, when it reviewed the decision later, thought the final warning was made in good faith.   So the case has been sent back to the Tribunal, to review both the original final warning and the later dismissal decision.

The practical (rather than legal) mistakes in this case were that Mr Way’s representative did not press the bad faith point sufficiently with the Tribunal when it first heard the case and, because the employer had no interest in pressing this point, the Tribunal did not pursue it either.  So the lessons are:

–    If you as an employer want to rely on a final warning, then make sure that you are satisfied it was given in good faith.  Don’t bury any concerns.  Deal with it.

–    If the employee challenges the final warning in tribunal but does not follow through, don’t bury the allegation.  Still deal with it.

The temptation is not to look for trouble, and ignoring things does work some of the time, but if you have a determined employee (especially if they are supported by a union), cutting corners is a false economy.

Or, as George Michael put it in his 1980s lyrics:  “Well it takes a strong man baby, But I’m showing you the door, ‘Cause I gotta have faith, faith, faith”.

JonathanGolden
Jonathan Golden